RULES AND REGULATIONS - National Labor Relations Board

OR 103.20that the proposal was generally in accord with current practice and thus could easily beimplemented.Most of the comments, however, also contained suggestions for amending the proposed rule.Two suggestions clearly had merit. One pointed out that the proposed rule referred, in thesummary preceding the rule, only to elections conducted under section 9(c) and thus did not applyto UD elections under section 9(e) and recommended that the rule refer simply to electionsconducted under section 9 of the Act. As the Board did not intend that 9(c) elections be conducteddifferently from 9(e) elections, this suggestion was adopted and the summary, as set forth above,was redrafted accordingly. The other suggestion was that, although the proposed rule implied thatthe failure to post the notice would be objectionable conduct, the rule should affirmatively statethat failure to post will be grounds for setting aside an election upon timely filing of an objection.Such an addition would remove any doubt as to the objectionable nature of the conduct as well asclearly place the burden of raising the failure to post on the other parties to the election therebyeliminating any argument that the Regions should police the rule. The Board agreed with thatposition. Accordingly, the following sentence has been added as a separate paragraph (d) atthe end of § 103.20:Failure to post the election notices as required herein shall be grounds for setting aside the election whenever properand timely objections are filed under the provisions of § 102.69(a).Two nurses’ associations suggested that the 3-day period be increased to 5 or 7 days asemployees in the health care field frequently do not work a normal 5-day week but instead worklong hours for 3 or 4 days and then have 3 to 4 days off. The Board considered this suggestion butstill concluded that a posting of 3 full working days is a sufficient period of time to adequatelyapprise most voters of their rights. The Board was reluctant to complicate the rule by establishingdifferent posting periods for different industries. However, because of other suggestions relatingto how the “3 full working days” is defined, as discussed below, we have changed the definitionof “working days”; as a practical matter, because of the way “working days” is defined, the actualposting period will normally be longer than 72 hours.As indicated, several commentators had problems with the language in the proposed rulerequiring that notices be posted “at least 3 full working days prior to the commencement of theelection.” “Working days” was defined in the proposed rule as “all days other than Saturdays,Sundays, and holidays.” Commentators thought that the rule was confusing as it was unclear as towhether the day of the election was included in the 3 days and also as to exactly when the 3 dayswould begin, i.e., 12:01 a.m. on the first day or when employees actually arrived for work on thefirst day. One commentator suggested that the rule require a period of at least 72 consecutivehours during the preceding 3 working days. The Board considered these suggestions and agreedthat the proposed language could be improved to make clear that the rule specifically excludes theday of election. Accordingly, the first sentence in § 103.20(a) has been rewritten to require thatnotices be posted at least 3 full working days prior to 12:01 a.m. of the day of the election. TheBoard did not adopt the suggestion that the rule should describe the time period in hours ratherthan 3 working days because requiring consecutive hours does not allow for Saturdays, Sundays,and holidays. We recognized, however, that the phrase “3 full working days” needed a moreprecise definition. Accordingly, the definition of “working days” in § 103.20(b) has been revisedto equate a full working day with an entire 24-hour period excluding Saturdays, Sundays, and155